Journal of Legislation
Volume 21 | Issue 2
Article 11
5-1-1995
First Amendment Implications of Anti-Stalking
Statutes, The;Note
Suzanne L. Karbarz
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THE FIRST AMENDMENT IMPLICATIONS OF ANTISTALKING STATUTES
I. INTRODUCTION
Many legislatures across the country have enacted anti-stalking laws. What may
surprise state legislators is the courts' application of these statutes to proscribe expressive activity. In light of First Amendment protection of expression, such an application
of the anti-stalking laws raises constitutional concerns.
State courts have been quick to apply anti-stalking laws to expressive activity.
For example, in June 1993 a Texas judge issued a temporary restraining order against
eight abortion protesters for stalking, as defined in the state's newly enacted statute.2
The judge applied the anti-stalking law to prevent abortion opposition activity 500 feet
from doctors' residences. In October 1993, Randy Jack Hinesley, believed to be the
first person prosecuted under a state's anti-stalking statute, pleaded no contest to criminal charges of stalking an administrator of a Florida abortion clinic.3 The judge used
the state's stalking statute to convict Hinesley for following the administrator, obstructing her view as she drove her car and taking her picture, all done to show his opposition to abortion.4 Another anti-abortion activist was charged with stalking the director
of a woman's clinic in Charleston, South Carolina.5 The scope of stalking laws has
reached beyond anti-abortion protesters. In Minnesota, four abortion rights activists
were charged under the state's anti-stalking law for following an Operation Rescue
group en route to the doctors' homes. 6 These examples could signal the beginning of a
line of cases where courts apply anti-stalking statutes to proscribe expressive conduct.
In each of these cases, courts applied the state anti-stalking statute to criminalize
conduct that could be construed as expression protected by the First Amendment. Although none of the defendants argued that the statutes were unconstitutional, 7 critics
have nevertheless questioned their constitutional validity. Scholars and defense attorneys have argued that these statutes are unconstitutional for various reasons! The two
1. 3 More Sue Hooters on Harassment, PLAIN DEALER (Cleveland), May 11, 1993, at 1E (stating
that Congress created a model stalking statute because the states have begun to do so in large numbers and are facing constitutional challenges).
2. Debbie Housel, Judge Bars Abortion Protesters From Doctors' Homes, HOUSTON POST, June
25, 1993, at A].
3. Abortion Protester Pleads No Contest in Stalking Case, SUN SENTINEL (Ft. Lauderdale), Oct.
9, 1993, at 18A.
4. Id.
5. Bruce Smith, Abortion Clinic Head Threatened, CHARLOTTE OBSERVER, Apr. 2, 1993, at IC.
6.
Kurt Chandler, Four Abortion Rights Activists Charged Under Anti-Stalking Law, STAR TRI-
BUNE (Minneapolis), Aug. 26, 1993, at lB.
7. Of the cited examples where criminal action has been taken, the Florida individual pleaded no
contest to the charges. He made no constitutional challenges to the statute under which he was being
convicted. Abortion Protester Pleads No Contest in Stalking Case, supra note 3, at 18A. None of the
cases have been argued before a court.
8. Scholars arguing that stalking statutes are unconstitutional assert the laws as written are unconstitutionally vague and have various unconstitutional bail and warrantless arrest provisions. See, e.g.,
Gera-Lind Kolarik, Stalking Laws Proliferate but Critics Say Constitutional Flaws Also Abound, 78
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[Vol. 21:333
major arguments are that the statutes are overbroad and that they criminalize what is
otherwise constitutionally protected expressive activity.
The enactment of anti-stalking statutes are a reaction to well-publicized cases
where women were repeatedly followed, harassed and threatened by an individual who
eventually killed them.' In each of these cases, police could not charge the offenders
with violating any criminal statute because none existed proscribing the activity.'"
Now, at least forty states have enacted anti-stalking statutes."
This Note will analyze certain First Amendment implications of anti-stalking
statutes. 2 Section II will provide the background necessary to understand why stalking statutes were enacted, the actus reus and mens rea requirements of the statutes, the
A.B.A. J. 35 (1992); Joseph V. Collina, Stalking Law is Bad Legislation, Unneeded and Unconstitutional, CHICAGO DAILY LAW BULL., July 31, 1992, at 5. See generally Robert A. Guy, Jr., Note, The
Nature and Constitutionality of Stalking Laws, 46 VAND. L. REV. 991 (1993) (discussing void for
vagueness challenges to stalking statutes).
9. In 1989, actress Rebecca Shaeffer was shot and killed by an obsessed fan. Her killer had
written numerous letters and had traveled on several occasions to communicate with her. Fred Leeson,
Inside the Mind of a Star Stalker, CRIMEBEAT, Apr. 20, i992, at 22-24. For over a year, he had sent
Shaeffer gifts, called her repeatedly and obtained personal information on her through databases. Eric
Malnic, Man Who Killed T.V. Actress Gets Life Without Parole, Los ANGELES TIMES, Dec. 21, 1991,
at B3.
Practically every week, new cases of people being "stalked"-usually by someone they
know-appear in the media. Newspapers are filled with celebrity cases: ice skater Katarina Witt was
followed by a man who tossed obscene letters onto the ice and a David Letterman fan, pretending to
be his wife, repeatedly trespassed near his home. Michael Matza, When Attraction Turns Obsessive it
May Seem Harmless. But to Victims, Stalking Means a Life of Fear, PHILADELPHIA INQUIRER, May 23,
1993, at Al.
Ordinary people are victims of stalking as well. Karen Erjavec received unsigned letters and
threatening telephone calls from a man who became obsessed with her after they were in a wedding
party together. Bryan Miller, Thou Shalt Not Stalk, CHICAGO TRIBUNE, Apr. 18, 1993, at 14. The
stalker fatally shot and killed both Karen and her boyfriend while they were walking home. Id. Steve
Jackson repeatedly threatened to kill his ex-girlfriend after their relationship ended. Kevin McKinney,
Teen Held Under Law Against Stalking, PHILADELPHIA INQUIRER, July 23, 1993, at B4. He continued
to attempt to break into her home, made threatening phone calls and would appear at her place of
employment. Id.
10. In five unrelated cases where boyfriends or ex-husbands harassed and killed their respective
partners, each of the women had obtained restraining orders that proved to be ineffective. James
Quinn, Man Pleads No Contest in 'Stalking' Case, LOS ANGELES TIMES, July 23, 1991, at B3.
11. The states that currently have stalking statutes include: ALA. CODE § 13A-6-90 (1975), ALASKA STAT. § 11.41.260 (1993), ARK. CODE ANN. § 5-71-229 (Michie 1993), CAL. PENAL CODE §
646.9 (West 1992), COLO. REV. STAT. ANN. § 18-9-111 (West 1993), CONN. GEN. STAT. ANN. § 53a181 (West 1993), DEL. CODE ANN. tit. 11, § 1312A (1992), D.C. CODE ANN. § 22-504 (1981), FLA.
STAT. ANN. § 748.048 (West 1993), GA. CODE ANN. § 16-5-90 (Michie 1993), HAW. REV. STAT. §
711-1106.5 (1992), IDAHO CODE § 18-7905 (1993), ILL. ANN. STAT. ch. 720, para. 5/12-7.3 (SmithHurd 1993), IND. CODE ANN. § 35-45-10-1 (West 1993), IOWA CODE ANN. § 708.11 (West 1993),
KY. REV. STAT. ANN. § 508.140 (Michie/Bobbs-Merrill 1993), LA. REV. STAT. ANN. § 14:40.2 (West
1993), MD. CRIM. LAW CODE ANN. § 121B (1993), MASS. GEN. LAWS ANN. ch. 265, § 43 (West
1993), MICH. COMP. LAWS ANN. § 600.2950a (West 1993), MINN. STAT. ANN. § 609.749 (West
1994), MISS. CODE ANN. § 97-1-7 (1972), MO. ANN. STAT. § 565.004 (Vernon 1993), MONT. CODE
ANN. § 45-5-220 (1993), NEB. REV. STAT. § 28-311.02 (1992), NEV. REV. STAT. § 200.575 (1993),
N.J. STAT. ANN. § 2C:12-10 (West 1993), N.M. STAT. ANN. § 30-3A-3 (Michie 1993), N.C. GEN.
STAT. § 14-277.3 (1994), N.D. CENT. CODE § 12.1-17-07.1 (1993), OKLA. STAT. ANN. tit. 21, § 1173
(West 1993), R.I. GEN. LAWS § 11-59-1 (1992), S.D. CODIFIED LAWS ANN. § 22-19A-1 (1993), TENN.
CODE ANN. § 39-17-315 (1993), 1993 TEX. PENAL CODE ANN. § 42.07(a)(7) (West 1994), UTAH
CODE ANN. § 76-5-106.5 (1993), VA. CODE ANN. § 18.2-60.3 (Michie 1993), WASH. REV. CODE ANN.
§ 9A.46.110 (West 1993), W. VA. CODE § 6 1-2-9a (1993), WYO. STAT. § 6-2-506 (1993).
12. This Note will not address First Amendment vagueness concerns, statutes that specifically
exclude labor picketing from prosecution, or the constitutionality of the warrantless arrest and bail
provisions prevalent in many stalking statutes.
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Anti-Stalking Statutes
basis for using them to outlaw what is allegedly protected First Amendment conduct,
and discuss the potential overbreadth and First Amendment challenges to the statutes.
Section III will discuss the overbreadth doctrine and standard of review for First
Amendment challenges, including a detailed presentation of the tests and legal principles involved in determining whether a statute is overbroad or violates the First
Amendment. Section IV will argue that stalking statutes are valid under the First
Amendment. Section V, the conclusion, will propose cautionary measures legislatures
should take in enacting stalking statutes to diminish the possibility of overbreadth and
First Amendment challenges.
II. HISTORY OF STALKING STATUTES AND THE POTENTIAL FIRST
AMENDMENT CHALLENGES
Stalking was not a crime until California enacted the first statute prohibiting it. 3
The need for stalking legislation arose due to the inability of existing legal remedies to
protect the victims from their stalkers.'" The most common type of protection for
people being stalked, prior to the enactment of stalking statutes, was the use of an
injunction."5 This method, however, proved to be ineffective in providing any meaningful protection. 6 Restraining orders and injunctions are often difficult to obtain and
can easily be broken with minor, and often, delayed consequences. 7
It is often difficult for a person being stalked to obtain a restraining order.' For
a judge to issue a protective order, many states require that there be actual physical
abuse. 9 Yet, many stalking victims are never physically abused. Thus, the victim is
unable to obtain a restraining order.
Restraining orders also fail to protect people from being stalked because minor
punishment is assessed if the order is broken. In thirty-one states, a violation of a
protective order only results in civil contempt.2" Unless the statute specifies otherwise,
police officers have no arrest power for civil contempt, even if they have witnessed the
offense." If the restraining order is violated, the victim either has to obtain an arrest
warrant or petition the court to summon the violator to a contempt hearing. The
13. CAL. PENAL CODE § 646.9 (West 1992).
14. Florida's stalking statute includes legislative findings that, "the traditional protections currently
available under criminal statutes are not always applicable to stalking" and that the legislature wanted
to "provide protection to victims, their families, and friends from the needless torment caused by stalking." FL. STAT. ANN. § 784.048 (West 1993). See Wayne E. Bradbum, Jr., Comment, Stalking Statutes: An Ineffective Legislative Remedy for Rectifying Perceived Problems with Today's Injunction
System, 19 OHIo N.U. L. REV. 271 (1992) (discussing the inadequacies of the present injunctive system).
15. Peter Finn, Statutory Authority in the Use and Enforcement of Civil Protection Orders Against
Domestic Abuse, 23 FAM. L. Q. 43 (1989).
16. Restraining orders vary in the amount of relief they grant. Typically, they include provisions
prohibiting contact or visiting a certain individual. Id. at 50.
17. Finn, supra note 15, at 43 (discussing the common statutory weaknesses of existing protective
measures).
18. Bradburn, supra note 14, at 271.
19. Florida's stalking statute, for example, requires physical abuse on two separate occasions. FLA.
STAT. ANN. § 784.046(2) (West 1993).
20. Finn, supra note 15, at 55. Civil contempt is defined as "[a] species of contempt of court
which generally arises from a wilful failure to comply with an order of court .
BLACK'S LAW
DICTIONARY 245 (6th ed. 1990).
21. Finn, supra note 15, at 55.
22. Finn, supra note 15, at 55.
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[Vol. 21:333
time delays involved in obtaining the hearing or warrant render injunctive relief ineffective to protect a victim from immediate physical harm. Since injunctive relief
proved inadequate to protect stalking victims, legislators responded by enacting stalking statutes. 3
The elements of stalking vary among the states. Every statute requires an activity, actus reus, to be done with a specified level of intent, mens rea. A typical actus
reus element requires that the person commit the act of stalking intentionally, willfully
or knowingly with the intent to put the victim in reasonable fear of bodily harm or
death. 4 Most states require the act of harassing or following.2" Alabama, for example, has a simple classification of the stalking actus reus as following or harassing.26
Some states, like Illinois, delineate the actus reus element even further and define
stalking as following the person on at least two separate occasions, or placing the
person under surveillance by remaining present outside his school, place of employment, vehicle, other place occupied by the person, or residence other than the residence
of the person allegedly doing the stalking.27
The intent required to be convicted under a stalking statute varies considerably
among the states.'" The California stalking law, for example, requires a "credible
threat" intended to cause the victim to reasonably fear harm.' 9 Florida's stalking law
23. The senators who introduced stalking legislation in North Carolina commented on the inadequacies of existing law to protect the victims of stalking. Helen Marvin, Stalker Law Would Help
Protect North Carolinians, CHARLOTTE OBSERVER, June 18, 1992, at 15A.
24. Those state statutes that require the intent to put the victim in reasonable fear of harm are:
ALA. CODE § 13A-6-90 (1975), ALASKA STAT. § 11.41.260 (1993), ARK. CODE ANN. § 5-71-229
(Michie 1993), CAL. PENAL CODE § 646.9 (West 1992), COLO. REV. STAT. ANN. § 18-9-111 (West
1993), CONN. GEN. STAT. ANN. § 53a-181 (West 1993), DEL. CODE ANN. tit. 11, § 1312A (1992),
D.C. CODE ANN. § 22-504 (1981), GA. CODE ANN. § 16-5-90 (Michie 1993), HAW. REV. STAT. §
711-1106.5 (1992), ILL. ANN. STAT. ch. 720, para. 5/12-7.3 (Smith-Hurd 1993), IND. CODE ANN. § 3545-10-1 (West 1993), IOWA CODE ANN. § 708.11 (West 1993), Ky. REV. STAT. ANN. § 508.140
(Michie/Bobbs-Merrill 1993), LA. REV. STAT. ANN. § 14:40.2 (West 1993), MD. CRIM. LAW CODE
ANN. § 121B (1993), MASS. GEN. LAWS ANN. ch. 265, § 43 (West 1993), MICH. COMP. LAWS ANN.
§ 600.2950a (West 1993), MNN. STAT. ANN. § 609.749 (West 1994), MISS. CODE ANN. § 97-1-7
(1972), MONT. CODE ANN. § 45-5-220 (1993), NEV. REV. STAT. § 200.575 (1993), N.J. STAT. ANN. §
2C:12-10 (West 1993), N.M. STAT. ANN. § 30-3A-3 (Michie 1993), N.C. GEN. STAT. § 14-277.3
(1994), N.D. CENT. CODE § 12.1-17-07.1 (1993), OKLA. STAT. ANN. tit.
21, § 1173 (West 1993), R.I.
GEN. LAWS § 11-59-1 (1992), S.D. CODIFIED LAWS ANN. § 22-19A-1 (1993), TENN. CODE ANN. §
39-17-315 (1993), 1993 TEx. PENAL CODE ANN. § 42.07(a)(7) (West 1994), UTAH CODE ANN. § 765-106.5 (1993), VA. CODE ANN. § 18.2-60.3 (Michie 1993), WASH. REV. CODE ANN. § 9A.46.110
(West 1993), W. VA. CODE § 61-2-9a (1993), WYO. STAT. § 6-2-506 (1993).
25. The state statutes which specifically include the acts of harassing or following in their definition of stalking include: ALASKA STAT. § 11.41.260 (1993), CAL. PENAL CODE § 646.9 (West 1992),
COLO. REV. STAT. ANN. § 18-9-111 (West 1993), CONN. GEN. STAT. ANN. § 53a-181 (West 1993),
DEL. CODE ANN. tit. 11, § 1312A (1992), FLA. STAT. ANN. § 748.048 (West 1993), GA. CODE ANN.
§ 16-5-90 (Michie 1993), HAW. REV. STAT. § 711-1106.5 (1992), IDAHO CODE § 18-7905 (1993), ILL.
ANN. STAT. ch. 720, para. 5/12-7.3 (Smith-Hurd 1993), IND. CODE ANN. § 35-45-10-1 (West 1993),
IOWA CODE ANN. § 708.11 (West 1993), LA. REV. STAT. ANN. § 14:40.2 (West 1993), MASS. GEN.
LAWS ANN. ch. 265, § 43 (West 1993), MICH. COMP. LAWS ANN. § 600.2950a (West 1993), MINN.
STAT. ANN. § 609.749 (West 1994), MONT. CODE ANN. § 45-5-220 (1993), NEB. REV. STAT. § 28311.02 (1992), NJ. STAT. ANN. § 2C:12-10 (West 1993), N.M. STAT. ANN. § 30-3A-3 (Michie 1993),
N.C. GEN. STAT. § 14-277.3 (1994), N.D. CENT. CODE § 12.1-17-07.1 (1993), OKLA. STAT. ANN. tit.
21, § 1173 (West 1993), S.D. CODIFIED LAWS ANN. § 22-19A-1 (1993), TENN. CODE ANN. § 39-17315 (1993), UTAH CODE ANN. § 76-5-106.5 (1993), WASH. REV. CODE ANN. § 9A.46.110 (West
1993), W. VA. CODE § 61-2-9a (1993), WYo. STAT. § 6-2-506 (1993).
26. ALA. CODE § 13A-6-90 (1993).
27. ILL. ANN. STAT. ch. 720, para. 5/12-7.3 (Smith-Hurd 1993).
28. See Guy, supra note 8, at 991.
29. CAL. PENAL CODE § 646.9 (West 1992). A credible threat is defined as a "threat made with
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requires that the stalker intend to inflict emotional harm on the victim. The law,
however, does not require that the fear be objectively reasonable." Virginia's stalking
statute only requires engaging in "conduct with the intent to cause emotional distress." 2 This Note will examine stalking statutes noting the different elements in each
state statute. The varying degrees of conduct required to convict under the statutes will
affect the overbreadth and as-applied First Amendment challenges.
III. THE OVERBREADTH DOCTRINE AND AS-APPLIED FIRST
AMENDMENT CHALLENGES
A defendant may challenge a statute by claiming it is facially overbroad or that,
as applied, the law violates the person's protected First Amendment rights. Overbreadth is a facial challenge to the statute as written. The as-applied First Amendment
challenge examines the implications of the law as applied to the specific facts of a
case.
A. The Overbreadth Doctrine
Traditional overbreadth doctrine allows a person charged with a crime to challenge the controlling statute as being facially overbroad because it may criminalize
constitutionally protected activity.33 Under this doctrine, individuals may challenge the
law even though their conduct may be proscribed by a different, properly drawn statute.34 This type of challenge allows a defendant to challenge the statute for the possible threat to another person's right to engage in protected activity.35
The ability of a defendant to challenge a statute because of the mere possibility
of the statute proscribing protected activity is an exception to the constitutional doctrine requiring standing for a person to sue.36 Traditionally, the Supreme Court has
placed a restraint on those individuals who challenge a statute on constitutional
grounds. The rule, grounded in Article III of the Constitution, limits the jurisdiction of
federal courts to actual cases and controversies.37 The Court stated that, as it pertains
to all federal courts, the Supreme Court
[Hias no jurisdiction to pronounce any statute, either of a State or of the United
the intent and the apparent ability to carry out the threat so as to cause the person who is the target
of the threat to reasonably fear for his or her safety or the safety of his or her immediate family." Id.
30. FLA. STAT. ANN. § 748.048 (West 1993).
31. Id. Although the Florida statute requires the stalker to intend to inflict harm on the victim,
the law does not require actual harm.
32. VA. CODE ANN. § 18.2-60.3 (Michie 1993).
33. Coates v. Cincinnati, 402 U.S. 611, 614 (1971).
34. Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987).
35. Id.
36. Thomhill v. Alabama, 310 U.S. 88 (1940).
37. New York v. Ferber, 458 U.S. 747, 768 (1982). Article III provides in relevant part:
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made, or which shall
be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies
to which the United States shall be a party;-to Controversies between two or more
States;-between a State and Citizens of another State;-between Citizens of different
States;-between Citizens of the same State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
U.S. CONST. art. III § 2.
[Vol. 21:333
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States, void, because irreconcilable with the Constitution, except as it is called
upon to adjudge the legal rights of litigants in actual controversies. In the exercise
of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one,
never to anticipate a question of constitutional law in advance of the necessity of
deciding it; the other never to formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied."
When faced with an overbreadth challenge, however, the Court does not require that
the person presently before the court be the actual litigant who could raise such a
constitutional question. The overbreadth doctrine, therefore, is one of the few exceptions to the case or controversy principle."
An overbroad statute is void in its entirety if it reaches a substantial amount of
protected speech and there is no way of severing the statute's unconstitutional applications.' As the overbreadth doctrine may void an entire statute, the Court has held that
the doctrine is "strong medicine" and should be applied "only as a last resort.'' Consequently, the degree of overbreadth must be substantial before the statute may be
facially invalidated.42
In Broadrick v. Oklahoma,43 the Court discussed the overbreadth doctrine and
the need for substantial overbreadth to invalidate a statute. In Broadrick, Oklahoma
state employees brought a class action, seeking a declaration that a state statute regulating political activity by state employees was invalid." The statute in question, Section 818 of the Oklahoma's Merit System of Personnel Administration Act, restricted
the political activities of the state's classified civil servants.45 The civil servants argued that although the statute served valid goals,' its language was unconstitutionally
vague and its prohibitions too broad in proscribing protected activity.47
Writing for the majority, Justice White maintained that Section 818 was neither
unconstitutionally vague nor substantially overbroad.' The Court opened the overbreadth analysis by stating that "[aipplication of the ...
doctrine ...
is, manifestly,
strong medicine. It has been employed by the Court sparingly and only as a last re-
38. Liverpool, New York & Philadelphia S.S. Co. v. Comm'rs of Emigration, 113 U.S. 33, 39
(1885); United States v. Raines, 362 U.S. 17, 21 (1960).
39. Raines, 362 U.S. at 22-23.
40. Houston v. Hill, 482 U.S. 451, 458 (1987) (citing Ferber, 458 U.S. at 747).
41. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
42. Ferber, 458 U.S. at 769.
43. Broadrick, 413 U.S. at 601.
44. Broadrick, 413 U.S. at 602.
45. Section 818 reached a broad range of political activities and conduct. Two of the contested
portions of the statute provide that "[n]o employee in the classified service . . . shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or
contribution for any political organization, candidacy or other political purpose" and no such employee
"shall be a member of any national, state or local committee of a political party, or an officer or
member of a committee of a partisan political club, or a candidate for nomination or election to any
paid public office." Broadrick, 413 U.S. at 605-7.
46. Broadrick, 413 U.S. at 607. The civil servants did not question Oklahoma's right to place
even-handed restrictions on the partisan political conduct of state employees and conceded that such
restrictions serve valid and important state interests. Such interests included attracting greater numbers
of qualified people by insuring their job security, free from the "vicissitudes of the elective process,
and by protecting them from 'political extortion."' Id. at 606.
47. Id. at 607.
48. Id.
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sort." 9 The Court wrote that although the statute may be broadly worded and potentially reach protected activity, "there comes a point where that effect-at best a prediction--cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its
power to proscribe."5 For this reason, the Court held that "particularly where conduct
and not merely speech is involved ... the overbreadth of a statute must not only be
real, but substantial as well, judged in relation to the statute's plainly legitimate
sweep."'" Indeed, when discussing the previous instances when the Court has struck
down a law on overbreadth grounds, the Court noted that overbreadth claims have
"been curtailed when invoked against ordinary criminal laws that are sought to be
'
applied to protected conduct."52
In addition, the Court noted that "overbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct
in the shadow of the First Amendment, but doing so in a neutral, noncensorial man53
ner."
When a federal court examines a statute challenged on overbreadth grounds, the
court will construe the statute to avoid constitutional problems, provided the statute is
55
subject to a limiting construction.54 In United States v. Thirty-Seven Photographs,
the court examined the constitutionality of a statute that allowed the government to
seize allegedly obscene photos.56 The Court wrote that "'[w]hen the validity of an act
of the Congress is drawn in question, and ... a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."' 57 In
RA.V. v. City of St. Paul," the Minnesota Supreme Court construed the state hate
crime statute to save it from being unconstitutionally overbroad. The Supreme Court
was bound by the construction the lower court gave the statute in question.59 Although the statute was eventually deemed an unconstitutional infringement of First
Amendment rights, the court was still bound by the limiting construction of the Minnesota court. If the savings construction would avoid a constitutional problem, the Court
will abide by this construction and sustain the statute's validity.
A statute that is not subject to such a narrowing construction, and is
impermissibly overbroad, may be partially sustained if the unconstitutional section can
49. Id. at 613.
50. Broadrick, 413 U.S. at 615; New York v. Ferber, 458 U.S. 747, 770 (1982). Cf Alderman v.
United States, 394 U.S. 165, 174-75 (1969).
51. Broadrick, 413 U.S. at 615; Ferber, 458 U.S. at 770.
52. Broadrick, 413 U.S. at 615. See Cantwell v. Connecticut, 310 U.S. 296 (1940).
53. Broadrick, 413 U.S. at 614. Although not specifically in the court's opinion, the reluctance to
apply the overbreadth doctrine to cases where the statute is neutral may correlate to the Court's reluctance to apply the strict scrutiny standard of review to other content-neutral statutes when faced with
an as-applied challenge. See infra notes 99-117 and accompanying text.
54. Ferber, 458 U.S. at 769 n.24.
55. United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971).
56. Id.
57. Id. at 369 (quoting Crowell v. Benson, 285 U.S. 22 (1932)).
58. R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992).
59. Id. In RA.V. the Minnesota court gave a savings construction to the statute in question and
sustained its validity. 464 N.W.2d 507 (Minn. 1991). Although the Supreme Court decided the law
was nevertheless an impermissible encroachment on First Amendment rights, the Court was bound by
the narrow savings construction of the lower court. R.A.V., 112 S. Ct. at 2541. Accord, e.g., Haynes v.
United States, 390 U.S. 85, 92 (1968).
340.
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[Vol. 21:333
be severed.' In New York v. Ferber, a bookstore proprietor was convicted under a
New York statute prohibiting persons from knowingly promoting a sexual performance
by a child under the age of 16.6' The Court held that the statute should not, in its entirety, be deemed unconstitutionally overbroad if the unconstitutional portion could be
severed from the legitimate proscription of activity.' The Court wrote that if the federal statute is impermissibly overbroad "it nevertheless should not be stricken down on
its face if it is severable, only the unconstitutional portion is to be invalidated."63 The
Court also noted that the overbreadth doctrine should only be applied in circumstances
in which "facial invalidation of a statute is truly warranted."
Federal courts will not strike down a law as overbroad if there is a core of easily
identifiable protected conduct, conceivably proscribed by a statute, but is known to be
constitutionally protected.65 In United States Civil Service Commission v. National
Ass'n of Letter Carriers,' a declaratory judgment action was brought to contest the
validity of the Hatch Act prohibition against federal employees taking an active part in
political management or in political campaigns.67 Federal employees argued the Hatch
Act prohibitions were unconstitutionally vague and overbroad.' The Supreme Court
disagreed. In holding the statute constitutional, Justice White wrote
Even if the provisions forbidding partisan campaign endorsements and
speechmaking were to be considered in some respects unconstitutionally overbroad,
we would not invalidate the entire statute ....The remainder of the statute...
covers a whole range of easily identifiable and constitutionally proscribable partisan
conduct on the part of federal employees, and the extent to which pure expression
is impermissibly threatened, if at all, by the [statute], does not in our view make
the statute substantially overbroad and so invalid on its face.'
The fact that there existed a core of easily identifiable and constitutionally proscribable
conduct that could be reached by the statute did not invalidate the entire statute on
overbreadth grounds."
Although the overbreadth doctrine could be applied to strike down many laws as
facially unconstitutional, the Supreme Court has refused to adopt such a sweeping
doctrine. By requiring substantial overbreadth and by allowing the courts to construe
the statute narrowly to save it from being deemed unconstitutional, the doctrine has
had a more limited application. Only in cases of complete bans of expressive activity
has the Court deemed a statute unconstitutional.7' The Court in Ferber7" noted Jus-
60. Ferber, 458 U.S. at 769; United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971).
61. New York v. Ferber, 458 U.S. 747 (1982).
62. Id. at 769.
63. Id. at 769 n.24.
64. Id.
65. Secretary of State v. Joseph H. Munson Co., 467 U.S. 947 (1984).
66. United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973).
67. Id.
68. Id.
69. 413 U.S. at 580.
70. In Secretary of State v. Joseph H. Munson Co., 467 U.S. 947 (1947), the Supreme Court
invalidated a Maryland statute that limited charitable fundraising expenses to twenty-five percent. The
dissenters criticized the majority for failing to recognize that a core of constitutionally protected activity existed here which should save the statute from being invalidated on overbreadth grounds.
71. For example, in Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987) the
Court, per Justice O'Connor, struck down an airport resolution banning all "First Amendment activi-
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tice Brennan's dissenting observation in Broadrick that the Court has "never held that
a statute should be held invalid on its face merely because it is possible to conceive of
a single impermissible application."" A tenuous application of a statute to protected
expression would not render the statute unconstitutionally overbroad. Even if the facial
challenge does not survive, a defendant challenging a statute may argue that the statute, as applied to facts of his case, violates the First Amendment.
B. The As-Applied First Amendment Challenge
The First Amendment states that "Congress shall make no law ...abridging the
freedom of speech."74 In interpreting this language, the Court has stated that "above
all else the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."" Despite this
assertion, protection given to speech is not absolute. 6
Certain categories of speech do not merit full First Amendment protection. Obscenity may be wholly prohibited." In cases of libel, the reputation interests of individuals grant libelous speech less constitutional protection.78 The Supreme Court has
held that commercial speech is afforded lesser protection than other constitutionally
guaranteed expression.79 Certain cases have suggested that threats constitute a category of speech not worthy of First Amendment protection. 0 Indeed, the Court has specifically denied First Amendment protection to a category of speech known as "fighting words."'"
"Fighting words" are a category of expression "not within the area of constitutionally protected speech." 2 As such, they can be consistent with the First Amendment, regulated because of their constitutionally proscribable content. 3 "Fighting
words" are defined as "those which by their very utterance inflict injury or tend to
ties" within the airport to be unconstitutionally overbroad. The Court concluded that any narrow savings construction would not save the resolution because it impermissibly and substantially interfered
with obviously protected First Amendment free speech activities such as wearing a campaign button or
T-shirt. Id. at 575.
72. New York v. Ferber, 458 U.S. 747 (1982).
73. Ferber, 458 U.S. at 772 (quoting Broadrick, 413 U.S. at 630 (1973) (Brennan, J., dissenting)).
74. U.S. CONST. amend. I.
75. Police Dep't v. Mosley, 408 U.S. 92, 95 (1972).
76. Whitney v. California, 274 U.S. 357, 373 (1927).
77. Miller v. California, 413 U.S. 15 (1973).
78. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).
79. Ohralik v. Ohio State Bar Ass'n., 436 U.S. 447, 456 (1978).
80. See Watts v. United States, 394 U.S. 705, 707 (1969) (stating that what is a threat must be
distinguished from what is constitutionally protected speech). See also Milk Wagon Drivers v.
Meadowmoor Dairies, Inc., 312 U.S. 287, 292-95 (1941) (holding the presence of violence justified an
injunction against both violent and nonviolent activity); Shackelford v. Shirley, 948 F.2d 935, 938-39
(5th Cir. 1991) (holding conviction under telephone harassment statute not entitled to relief because
"threats made with the specific intent to injure and focused on a particular individual easily fall into
that category of speech deserving of no First Amendment protection"); United States v. OrozcoSantillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990) (noting that "[a] 'true' threat, where a reasonable
person would foresee that the listener will believe he will be subjected to physical violence upon his
person, is unprotected by the first amendment.") United States v. Mitchell, 463 F.2d 187, 191 (8th Cir.
1972) (stating violent threats are "devoid of constitutional protection"). See generally United States v.
McDermott, 822 F. Supp. 582 (N.D. Iowa 1993).
81. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
82. Roth v. United States, 354 U.S. 476, 483 (1957).
83. R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2543 (1992).
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incite an immediate breach of the peace. '.4 "Similarly, words that create an immediate panic are not entitled to protection.... "This Court has made clear, however, that
mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment." 86 Hence "[tihe principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or produce such
action." 7
Expressive conduct may not always merit full protection either.88 Although the
Court could have restricted First Amendment protection to the written or spoken word,
it extended protection to types of expressive activity because conduct can be communicative. The Court refused, however, to accept the view that "an apparently limitless
variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." To determine if conduct is sufficiently expressive to merit First Amendment protection, the Court inquires whether "[an intent
to convey a particularized message was present, and [whether] in the surrounding
circumstances the likelihood was great that the message would be understood by those
who viewed it."9 Both the nature of the activity and the factual context are relevant.92 The conduct must be intended to convey a message. Those who viewed the act
should likely be able to understand that a message is being conveyed as well.
93
the Court
In Tinker v. Des Moines Independent Community School District,
held that wearing armbands to oppose the Vietnam War was constitutionally protected
expression.94 In Spence v. Washington,95 the Court assumed for First Amendment
purposes that affixing a peace symbol to a flag was expression through conduct.96
Begging and panhandling in a subway system are also deemed expressive conduct
under the First Amendment.97
Determining whether or not the First Amendment applies to the conduct in question is the first step in an expressive-conduct First Amendment challenge.98 Once the
84. Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) (quoting Chaplinsky, 315 U.S. at 57172).
85. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982) (quoting Schenck v. United
States, 249 U.S. 47 (1919)).
86. NAACP, 458 U.S. at 927.
87. Id. at 928 (citing Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)).
88. See Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (refusing to grant First Amendment protection
to social dancing). Cf. Barnes v. Glen Theatre, Inc., IlI S. Ct. 2456, 2460 (1991) (granting First
Amendment protection to nude dancing).
89. United States v. O'Brien, 391 U.S. 367, 376 (1968). In O'Brien, the court discussed the First
Amendment implications of the statute because the "alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment." Id.
90. Id.
91. Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam).
92. Id. at 409-10.
93. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969).
94. Id.
95. Spence, 418 U.S. at 405.
96. The Court's opinion stated that this conduct was "a case of prosecution for the expression of
an idea through activity." Id. at 411.
97. Young v. New York City Transit Auth., 903 F.2d 146, 152 (2d Cir. 1990). In Young, the
Second Circuit deemed panhandling as activity primarily designed to collect money, not to express any
ideas. Cf. Loper v. New York City Police Dep't, 999 F.2d 699 (2d Cir. 1993) (holding begging constitutes communicative activity of some sort).
98. Texas v. Johnson, 491 U.S. 397, 403 (1989). In this case, Justice Brennan stated that the
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conduct has been shown to bring First Amendment protection into play, the Supreme
Court has allowed certain incidental limitations on the nonspeech element (the actual
conduct versus the speech element, the message) provided the government can prove a
sufficiently important governmental interest in regulating the nonspeech element."
The level of review and deference with which the Court will scrutinize the statute.
depends on whether or not the statute in question is deemed content-based or contentneutral.
Content-based regulations, those which restrict speech based on the message, are
subject to a higher level of scrutiny known as strict scrutiny." Statutes which are
content-neutral are those which place no emphasis on the message, but rather, focus on
the conduct or manner in which the speech is directed. Content-neutral statutes regulating conduct are examined using the test outlined in United States v. O'Brien.'0 '
Whether the challenged law is content-based is a crucial question. In every case
where the O'Brien test has been applied to a content-neutral regulation, the regulation
has been sustained. Compare this result with cases where $trict scrutiny has been applied. Regulations are typically struck down under the stringent strict scrutiny approach. It is substantially more difficult to survive such a constitutional challenge. 02
In O'Brien, the seminal case discussing the level of First Amendment protection
granted to conduct, the defendant was convicted for burning his draftcard in violation
of a recently amended provision of the United States Code." 3 Under the new provision, an offense was committed by any person "who forges, alters, knowingly destroys,
knowingly mutilates, or in any manner changes any [registration] certificate."" 4
O'Brien and three of his companions burned their draftcards on the steps of the South
Boston Courthouse. 5 Upon questioning and at his trial, O'Brien stated that he had
burned his draftcard publicly to influence others to adopt his antiwar beliefs and to
reevaluate their positions regarding the Selective Service and armed forces."
At the district court, O'Brien argued that the law prohibiting the knowing destruction or mutilation of certificates was unconstitutional because it was enacted to
abridge free speech. 7 The district court found no violation. The appellate court,
however, held the amendment to be an unconstitutional abridgement of the freedom of
speech.' It considered the law to be in violation of the First Amendment because
the law singled out persons engaged in protests for special treatment5 9 The court
Court must "first determine whether Johnson's burning of the flag constituted expressive conduct permitting him to invoke the First Amendment in challenging his convictions." Id.
99. United States v. O'Brien, 391 U.S. 367, 376 (1968).
100. See R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992).
101. O'Brien, 391 U.S. at 367; See infra notes 102-117 and accompanying text.
102. In R.A.V., the court applied strict scrutiny to a statute that prohibited certain hate crimes,
those done to an individual because of their race, color, creed, religion or gender. The court concluded
strict scrutiny was the appropriate standard and struck down the law as unconstitutional. 112 S. Ct. at
2538. In Johnson, 491 U.S. at 397, the Court applied strict scrutiny to a Texas flag burning statute
and held it to be unconstitutional.
103. O'Brien, 391 U.S. at 370.
104. Id.
105. Id. at 369.
106. Id. at 370.
107. Id.
108. O'Brien v. United States, 376 F.2d 538 (1st Cir. 1967), cert granted, 389 U.S. 814, judgment
denied, 391 U.S. 367, reh'g denied, 393 U.S. 900.
109. Id.
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nevertheless affirmed O'Brien's conviction as violating a statutory provision that made
it a crime not to possess a draftcard." ° The central issue in the case was whether the
federal statute proscribing the knowing destruction of a draftcard was an unconstitutional infringement on First Amendment free speech protection. The court addressed
the issues of what types of conduct should be protected and, if protected, what level of
scrutiny applies. In O'Brien, the Supreme Court stated the test for determining whether
a state's regulation of conduct is an unconstitutional burden and violates the First
Amendment:)I
[A] government regulation is sufficiently justified if it is within the constitutional
power of the Government; if it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest."'
Each of these four elements must be met to sustain a First Amendment challenge.
This test has only been applied to instances where the state regulation in question
is content-neutral." 3 This concern over whether a regulation is content-neutral is expressed in the third prong of the O'Brien test." 4 Since the answer to this element of
the test is determinative of whether O'Brien applies, this issue is typically considered
before moving on to the other elements of the test. O'Brien is not applied when examining content-based restrictions, i.e., those that limit conduct because of the message
that is being conveyed through that activity. The Court will instead apply a much more
stringent strict scrutiny standard of review." 5
When the state regulation is unrelated to the suppression of free expression (content-neutral), it must meet the other elements of the O'Brien test. The first prong inquires whether the regulation is within the constitutional power of the government to
regulate." 6 This element is typically met without much difficulty because a state is
able to identify some source of regulatory power.'
The second element of the O'Brien test is whether the government regulation
110. Id.
111. David S. Day, The Incidental Regulation of Free Speech, 42 U. MIAMI L. REv. 491, 505
(1988).
112. O'Brien, 391 U.S. at 376.
113. Texas v. Johnson, 491 U.S. 397, 412 (1989) (applying O'Brien to the expressive conduct of
burning a United States flag); Barnes v. Glen Theatre, 111 S. Ct. 2456 (1991) (applying O'Brien to
the validity of a state statute prohibiting nude dancing). In United States v. Albertini, 472 U.S. 675,
687-88 (1985), the majority opinion, written by Justice O'Connor, noted that the "application of a
facially neutral regulation that incidentally burdens speech satisfies the First Amendment" if is satisfies
the O'Brien standard. See supra notes 103-112 and accompanying text. See infra notes 113-117 and
accompanying text.
114. The third element in O'Brien asks whether the government regulation is "unrelated to the
suppression of free expression." O'Brien, 391 U.S. at 376.
115. Boos v. Barry, 485 U.S. 312 (1988). Strict scrutiny review is the strictest scrutiny a court
will apply to a state regulation. Under strict scrutiny, the court asks whether the state has a compelling state interest in regulating the speech. Almost all state regulations examined under this level of
scrutiny are deemed unconstitutional.
116. O'Brien, 391 U.S. at 376.
117. One scholar has commented that the first element of the O'Brien test "is superfluous in light
of what is normally designated criterion." Recent Development, Free Speech and Public Utilities: Consolidated Edison Co. v. Public Service Commission, 44 ALB. L. REv. 515, 523 n.50 (1980). See Day,
supra note 111,
at 491.
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furthers an important or substantial governmental interest."' A state may not proscribe conduct without a legitimate interest. The interest, however, need not rise to the
level of being a compelling state interest, as required with strict scrutiny review." 9
The government can satisfy this prong merely through proof of the existence of some
governmental concern.
The final element of the test requires the incidental restriction on the alleged
First Amendment freedom be "no greater than is essential to the furtherance" of the
governmental interest.' Although this aspect of the test could have been used to examine the means used in the regulation with some level of scrutiny, the Court has,
instead, reduced the means test to requiring only a rational basis.' Under rational
basis review, the court will merely inquire into whether the means used are rationally
related to meeting the desired end. If so, this prong is satisfied.
IV. STALKING STATUTES ARE CONSTITUTIONALLY VALID
State anti-stalking statutes survive both facial and as-applied First Amendment
attacks.
A. Stalking Statutes Are Not Overbroad
A statute must be substantially overbroad to be facially unconstitutional.'22 It is
doubtful that stalking statutes, which proscribe conduct, not pure speech, rise to this
level. The conduct and intent requirements of the statutes limit the application of the
statutes. These two requirements will limit the situations in which the statutes will
apply.
To be convicted under a stalking statute, the defendant must engage in repeated
conduct, such as following the victim. States traditionally have had the power to proscribe conduct, 23 regardless of the message involved, when such conduct rises to the
level of harassment, murder, or other harm. In a recent challenge to a hate crime statute, the Washington Supreme Court stated that when the conduct involved "crosses the
boundary into criminal harassment" the state could proscribe such conduct."' 24
A state stalking statute would also survive an overbreadth challenge because the
intent requirement would eliminate from proscription any innocent protected conduct.
Stalking statutes require defendants to intend to put their victims in fear for their life
118. O'Brien, 391 U.S. at 376.
119. In applying strict scrutiny standard of review, the Court will ask whether the state has asserted some compelling interest in regulating the behavior. Under O'Brien, the interest need not be compelling or of substantial importance. The interest need only be legitimate. Stone, Content-Neutral Restrictions, 54 U. CI. L. REV. 46, 51 (1987).
120. O'Brien, 391 U.S. at 376.
121. In Wayte v. United States, 470 U.S. 598, 613 (1985), the Court did not consider the means
used in a Selective Service System statute to be unconstitutional despite the random prosecutions under
the statute to enforce the law. In United States v. Albertini, 472 U.S. 675, 689 (1985), the Court held
that the means prong of O'Brien was satisfied "so long as the neutral regulation promotes a substantial
government interest that would be achieved less effectively absent the regulation." See Day, supra note
!11, at 491.
122. See supra notes 40-42 and accompanying text.
123. Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921) (stating "there can be no
question of the authority of the state in the exercise of its police power to regulate the administration,
sale, prescription and use of dangerous and habit-forming drugs ....
The right to exercise this power
is so manifest in the interest of the public health and welfare, that is unnecessary to enter upon a
discussion of it beyond saying that it is too firmly established to be successfully called in question.")
124. State v. Talley, 858 P.2d 217, 227 (Wash. 1993).
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or bodily injury. Peaceful picketing would not be proscribable under such a statute
because it lacks the requisite intent to constitute criminal activity. Wearing political
attire and following a candidate would not constitute stalking absent the intent to harm.
Once an individual acts with the intent to harm, his activity would most likely be
deemed not protected under the First Amendment.
It is difficult to determine what types of protected activity could be proscribed by
the stalking statutes that would make the statutes overbroad. In a case by case analysis,
a court would require both conduct and intent to harm before convicting someone. As
in Broadrick23 the Court noted that any hypothetically remote application of the
statute to protected or innocent conduct would not fall under the sweep of the statute; a
case by case analysis of the facts would show that the protected conduct does not meet
the statute's requirements to convict. 26 Any possible impermissible applications of
the statute would not exist because the facts before the court could not support a conviction.
B. Stalking Statutes Are a Permissible, Content-Neutral Regulation of Conduct
As a threshold matter, a court must determine whether the conduct proscribed by
a challenged stalking statute is protected by the First Amendment.
Stalking may well be considered expressive. In Spence v. Washington,'" the
Court discussed when activity should be considered protected expression. 2 The
Court considered the nature of the activity involved, the factual context, and the environment in which the activity was undertaken.'29 The Court looked to whether the
activity is designed to communicate an idea and whether a reasonable person would
understand this intent. 3 ' In a stalking situation, a person threatens another individual.
That person conveys a message, albeit a negative one. When a person follows another
or sends numerous letters, that may be an expression of affection and warm feelings.
For example, a person may be obsessed with a movie star and may send him love
letters expressing this obsession. 3' The fan is expressing a message to its star. The
recipient, of course, understands that the fan reveres him.
Abortion protesting probably constitutes protected expressive conduct: the protesters are expressing their opposition to abortion. They have the intent to convey this
opposition. The likelihood that a reasonable person would understand this message is
high. In fact, picketing on issues of public concern, such as the abortion debate, has
been held to be protected by the First Amendment.'
125. See Broadrick v. Oklahoma, 413 U.S. 601, 615-16 (1973).
126. Id.
127. Spence v. Washington, 418 U.S. 405 (1974). In Spence, the defendant was convicted, under a
Washington statute, for improperly using the American flag for exhibition or display. The Court held
that the statute was unconstitutional as applied to a college student in hanging a privately owned Unit-
ed States flag, upside down, with a peace symbol affixed, out of his window on private property, as a
means of expressing his opinion that America stood for peace. Id. Before addressing whether the statute was a permissible infringement of First Amendment rights, the Court first examined whether the
activity was protected. Id. at 409.
128. Id. at 410.
129. Id.
130. Id.
131. In the case of actress, Rebecca Shaeffer, her obsessed fan sent numerous letters expressing his
feeling towards her.
132. Frisby v. Schultz, 487 U.S. 474 (1988) (concluding that abortion picketing about a residence
or dwelling to be protected expressive conduct); Amalgamated Food Employees Union Local 590 v.
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A protester's behavior that transcends mere picketing should technically be considered expressive conduct. In the Florida incident, the defendant protested at the abortion clinic where the victim worked. The defendant also followed his victim, took
pictures of her, and attempted to obstruct her view as she drove her car. 3 The defendant made gestures toward his victim allegedly implying that he wanted to shoot
"
her. 34
' This activity, despite its nature, technically meets the criteria under Spence to
warrant constitutional protection as expressive activity. The defendant maintains the
intent to convey a message. He opposes the activities of the victim. In all likelihood,
his victim and a reasonable person viewing the situation would understand that his
repeated efforts indicate an opposition to abortion. This activity technically should be
considered expressive conduct under the First Amendment.
A strong argument can be made, however, that stalking is not worthy of First
Amendment protection because the activity falls within the category of unprotected
speech, "fighting words", or constitutes unprotected threats.'35 In R.A.V., the Court
discussed the burning of crosses as protected first amendment activity.' 36 The Court
noted that the action itself may be proscribed as fighting words, but specifically singling-out the content of the words for regulation (making the regulation content-based)
is not allowed.'37 Stalking is threatening activity. A conviction requires the intent to
by the
harm and repeated conduct. Regardless of the message meant to be conveyed
' 38
activity, the actions are proscribable conduct meant to "inflict injury.'
If stalking, arguendo, is deemed worthy of First Amendment protection, antistalking statutes would nonetheless sustain constitutional muster. The statutes, after all,
would not proscribe any speech protected by the First Amendment. Stalking activity,
when shown to have an intent to threaten, would not be protected under this exemption. Assuming that stalking activity encompasses some expressive conduct protected
by the constitution, the statutes are still constitutionally permissible. They only reach
activity intended to cause harm.
Once the conduct is deemed expressive and protected by the First Amendment,
the court will apply one of two standards of review to expressive conduct: strict scrutiny or the O'Brien test. 39 Which standard applies depends on whether the challenged
statute is content-neutral (O'Brien) or content-based (strict scrutiny). The proper standard with which to examine stalking statutes is the O'Brien test because such statutes
are content-neutral regulations of criminal conduct."4 In Florida's stalking statute, for
Logan Valley Plaza, Inc., 391 U.S. 308 (1968) (holding picketing at a supermarket in a shopping
center to be protected conduct).
133. Abortion Protester Pleads No Contest in Stalking Case, supra note 3, at 18A.
134. Earlier in the year, a physician was shot to death during an anti-abortion demonstration. The
defendant in this case made gestures to the victim, pointed to them and said "bang, bang" on the day
after the doctor was shot. Id.
135. See supra notes 81-87 and accompanying text.
136. R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992).
137. Id. at 2544 (citing Texas v. Johnson, 491 U.S. 397 (1989) and noting that activity can be
banned because of the action it entails, but not because of the ideas it expresses-so that burning a
flag in violation of an ordinance against outdoor fires could be punishable whereas burning a flag in
violation of an ordinance against dishonoring the flag is not).
138. See supra note 84 and accompanying text.
139. See Richard A. Seid, A Requiem for O'Brien: On the Nature of Symbolic Speech, 23 CUMB.
L. REV. 563 (1993).
140. Stalking statutes, in general, do not make an exception for certain types of conduct. Illinois'
stalking statute, for example, makes a specific exemption to that activity that arises out of a bona fide
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[Vol. 21:333
example, a person is guilty of felony stalking if he "willfully, maliciously, and repeatedly follows or harasses another person, and makes a credible threat with the intent to
place that person in reasonable fear of death or bodily injury."'' To be convicted of
stalking in Florida, the defendant needs to: 1) commit the act of following or harassing
on more than one occasion, 2) with the intent to place that other individual in fear of
death or injury and 3) makes this threat credible. 42 To be convicted of stalking in
North Carolina, a person must willfully follow another "with the intent to cause emotional distress by placing that person in reasonable fear of death or bodily injury."'43
Similar to the Florida statute, the crime in North Carolina requires an intent to put a
person in fear through their actions.
In examining these statutes, the proscribed conduct requires transmittal of fear to
the victim and the intent to transmit such fear. A stalking statute, therefore, would not
prohibit peaceful picketing outside of a business in opposition to its buying policies. In
this situation, the picketers would lack the intent to put someone in fear of injury, as
required by the statute. The stalking statutes would not encompass consistent phone
calls to political constituents seeking their support for an upcoming election-the intent
to put someone in fear of injury would be lacking. Regardless of what a person is
trying to convey through his activity, he will be convicted only if he intends to place
his victim in fear of injury.
In each stalking statute, the legislature does not distinguish among the messages
conveyed by the prohibited activity. One stalker may choose to express his love of a
star through his actions. Another stalker may choose to follow a former girlfriend in an
attempt to gain her love once again. Another stalker may choose to follow a presidential hopeful to show his undying support of the candidate's views. Yet another may
choose to follow a doctor who performs abortions around town day and night. If the
stalker has the intent to put the victim in fear of bodily injury, only then may he be
convicted under the statutes. The fact that each of these individuals expresses a different message is irrelevant to conviction under the statute. The statute is applied to all
individuals who engage in fear-inducing activity. It is behavior that is targeted, not the
beliefs.
To illustrate this point, it is helpful to examine certain cases where the court has
held the state regulation to be content-based. In R.A.V. v. City of St. Paul,'4 the defendant challenged his conviction under a Minnesota statute that prohibited bias-motivated disorderly conduct. 45 In holding the statute unconstitutional, the Court applied
a strict scrutiny standard of review because the statute was content-based.'" Not all
disorderly conduct under the statute was prohibited-only bias-motivated conduct
labor dispute. This distinction would make the statute content-based and therefore subject to the higher
strict scrutiny standard. Illinois' statute, however, is the only statute that makes such an explicit content distinction. Consequently, this Note examines the First Amendment implications based on the
assumption that the statute does not, as do the majority of statutes, make an exemption for certain
activity.
141. FLA. STAT. ANN. § 748.048(3) (West 1993).
142. Every state stalking statute thus far requires intent by the stalker to put the "stalkee" in fear
of injury. See, e.g., CAL. PENAL CODE § 646.9 (West 1992); ALA. CODE § 13A-6-90 (1993).
143. N.C. GEN. STAT. § 14-277.3 (1994).
144. R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992).
145. Id.
146. Id.
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349
could be reached. In Texas v. Johnson,47 the Court held a state statute that prohibited
burning of a United States flag to be unconstitutional under the strict scrutiny standard." Under the ordinance, only flag burning done to dishonor the flag was
proscribable." 49 In both of these cases, one could only be convicted under the statute
if the content of the message being conveyed was a specific message. The statute made
a distinction based on the content of the conduct.
Although not dispositive in determining whether a statute is content-based, the
motive behind enacting the statutes may be a factor in the content-based, content-neutral determination.' ° The first stalking statute was enacted in response to several well
publicized cases of individuals being stalked. 5 ' Several of the enacted statutes include findings that the stalking statute was enacted to criminalize the harassing behavior. 52 The statutes were not enacted with the intent to distinguish among messages
propounded by activities. The stalker's conduct, not message, was proscribed.
As content-neutral regulations, stalking statutes should be examined using the
O'Brien test. The first prong inquires whether the regulation is within the
government's regulatory power.'53 The Supreme Court has held that it is within the
state's power to proscribe harmful conduct.'54 The state, therefore, can legitimately
proscribe this harmful harassing activity.
The second prong of the O'Brien test requires that the regulation further an important or substantial government interest.'55 In enacting stalking statutes, the state
maintains an interest in protecting the well-being and privacy of the home.'56 Residential privacy has been the hallmark of a "free and civilized society."'57 Stalkers
often follow their victims home. In the Texas case, abortion protesters followed the
doctor up and down the street in front of his home and placed crosses in the front
lawns of other residents on the street.' 8 Because the state maintains an important interest in protecting the privacy of the home, it may proscribe this conduct that impedes
the enjoyment of the victims' privacy at home.
States also maintain the general regulatory power to provide for the well-being of
their citizens. In protecting its citizens from harassing and threatening activity by
criminalizing stalking, the state protects the well-being of its citizens.
Stalking statutes satisfy the means element of the O'Brien test as well. This
147. Texas v. Johnson, 491 U.S. 397 (1989).
148. Id.
149. Id. at 406-07.
150. See id. at 397.
151. In 1989, actress Rebecca Shaeffer was shot and killed by an obsessed fan. Her killer had
written numerous letters and had traveled on several, occasions to communicate with her. Leeson, supra
note 9, at 22-24. In five unrelated California cases, boyfriends or ex-husbands harassed and killed their
respective partners. Their actions prior to the murders were not considered criminal conduct under the
then-present state law. Quinn, supra note 10, at B3.
152. Sponsors of the stalking legislation in North Carolina, for example, commented that the laws
would allow for a person being stalked to gain protection by arresting the stalker. Marvin, supra note
23, at 15A.
153. United States v. O'Brien, 391 U.S. 367, 376 (1968).
154. Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921).
155. O'Brien, 391 U.S. at 376.
156. Frisby v. Schultz, 487 U.S. 474, 484 (1988).
157. Carey v. Brown, 447 U.S. 455, 471 (1980).
158. Terri Williams, No Arrests of Abortion Protesters Pickets at Doctors' Homes Unswayed by
Court Action, Hous. POST, June 27, 1993, at A23.
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prong requires the means used in proscribing expressive conduct to be rationally related to a legitimate end. In this case, stalking statutes are designed to proscribe threatening conduct. It is rational for a state to prohibit conduct that is threatening to its citizens. The legislature easily could have determined that this was the best way to stop
the behavior. Whether alternatives exist to reach a specific end is not an issue in a
rational basis means-end analysis. The means used need only be rational, and not be
the least onerous alternative. Stalking statutes, therefore, meet this rational basis standard.
V. CONCLUSION
Anti-stalking statutes were enacted to protect men and women from harassing,
threatening activity. The activity being proscribed by the statutes transcends mere
expressive conduct. Stalkers place their victims in fear of harm. This type of activity is
not worthy of constitutional protection. States have the right to protect their citizens
from those who place them in fear.
Anti-stalking statutes, as content-neutral regulations, may permissibly limit collateral expressive activity. States maintain legitimate concerns in protecting their citizens
from harm, especially near the confines of their own home.
Legislators must be forewarned, however, to carefully draft stalking statutes to
avoid constitutional challenges. Of primary importance is to draft the legislation to be
content-neutral. By doing so, the statutes will be scrutinized under the less onerous
O'Brien standard and are more likely to withstand scrutiny. The statutes should also be
precisely drafted to require specific actus reus and mens rea elements for conviction.
These elements will lessen the chance of potential overbreadth challenges. By carefully
constructing the statutes, legislators will be able to effectively protect their citizens
from stalker while maintaining permissible restrictions on our precious First Amendment rights.
Suzanne L. Karbarz*
* B.A. Political Science, University of Illinois-Urbana, 1992; J.D. Candidate, George Washington
University National Law Center, 1995.